Global Business & Development Law Journal

Volume 6 | Issue 2 Article 6

1-1-1993

A Comparison of U.S. and Japanese EnvironmentalLaws Governing Emissions from Major IndustrialFacilitiesDr. Thomas S. MackeyKey Metals & Minerals Engineering Corporation;

Jim S. HartAndrews & Kurth L.L.P.,

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Recommended CitationDr. Thomas S. Mackey & Jim S. Hart, A Comparison of U.S. and Japanese Environmental Laws Governing Emissions from Major IndustrialFacilities, 6 Transnat'l Law. 579 (1993).Available at: https://scholarlycommons.pacific.edu/globe/vol6/iss2/6

Practitioner's Perspective

A Comparison of U.S. and Japanese Environmental LawsGoverning Emissions from Major Industrial Facilities

Dr. Thomas S. Mackey*Jim S. Hart**

TABLE OF CONTENTS

I. INTRODUCTION ............................................ 580A. Governmental Agencies in Japan ............................ 580B. Environmental Pollution Control Policy in Japan ................ 581C. Federal Versus Prefectural and State Control ................... 582

I. A COMPARISON OF U.S. AND JAPANESE

AIR AND WATER POLLUTION LAW .............................. 582

A. Japanese Air Pollution Control Law ......................... 582

B. Japanese Water Pollution Control Law ....................... 584

C. Overview of the Japanese Permit Procedure for a New Emitting Facility 585D. Comparison of U.S. and Japanese Air and Water Pollution Control Laws 585E. Comparison of U.S. and Japanese Timetables for Obtaining Permits ... 587

H. CASE STUDIES: A COMPARISON OF

REGULATORY FRAMEWORKS AS APPLIED ......................... 588

IV. A U.S. LEGAL STRENGTH: THE REQUIREMENT OF AN ENVIRONMENTAL

IMPACT STATEMENT FOR PROPOSED EMITTING FACILITIES .............. 590

V. A JAPANESE STRENGTH: COMPENSATION FOR HEALTH DAMAGE .......... 590

VI. CONCLUSION ............................................. 591

APPENDIX A ................................................ 593

APPENDIX B ............................................... 594

* Registered Professional Engineer. Member of the Texas State Bar President, Key Metals & Min-

erals Engineering Corporation; Chairman of the Board and President, Neomet Corporation; President, CoxCreek Refining Company; Director, Malaysian Titanium Corporation; President, USA Logistics ServicesCorporation; President and Director, Airtrust International Corporation. B.S., Manhattan College; M.E.,Columbia University; Ph.D., Rice University; J.D., South Texas College of Law; LL.M., University ofHouston Law Center.

** Associate, Andrews & Kurth L.L.P., Labor Section; Member of the Texas State Bar. B.B.A.,1984, J.D., 1991 (with honors) Texas Tech University; Order of the Coif.

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APPENDIX C ................................................ 595

APPENDIX D ................................................ 596

APPENDIX E ................................................ 597

APPENDIX F ................................................ 598

APPENDIX G ................................................ 599

I. INTRODUCTION

This Article offers a general and practical comparison of the major environmentallaws in the United States and Japan. Specifically, this Article reviews both countries'national environmental policies and their laws which regulate air, water, and hazardouschemicals. It also compares the relationship between industry and government concerningthe control of pollution in each country. The authors derive much of the substance of thisArticle from their numerous visits to Japan and from their current involvement withpermit process for industrial plants in the United States.

A. Governmental Agencies in Japan

Before 1970, the Japanese government lacked a systematic, centralized pollution con-trol administration. Jurisdiction over environmental problems was randomly distributedamong various minist~ries and advisory councils.' Organizations such as the Ministry ofInternational Trade and Industry (MITI), the Ministry of Health and Welfare, and the Min-istry of Agriculture and Forestry, along with many others, had individual responsibilityfor specific aspects of pollution control.

Public criticism of environmental problems was on the rise in the 1960s, and by 1967,the Japanese government was under pressure to establish a new, independent environ-mental agency which would systematically administer pollution control. 2 Internal criti-cism of the existing structure in Japan further increased in 1970 when the United Statesestablished the Environmental Protection Agency (EPA) and other countries establishedsimilar independent governmental agencies.3 Because of this internal and externalpressure, the Japanese government passed the Environmental Agency Establishment Lawon May 24, 1971,' and the Environmental Agency came into being on July 1, 1971. 5

The Environment. Agency, headed by a director/general appointed to the cabinet withthe rank of Minister of State, is comprised of four bureaus: (1) Planning and Coordina-

1. JULIAN GRESSER ET AL., ENVIRONMENTAL LAW IN JAPAN 26 (1981).2. Id3. Id.4. The Environment Agency Organization Law, Law No. 88 (1971); set Roger E. Lutz, The Laws of

Environmental Management: A Comparative Study, 24 AM. J. COMP. L. 447, 454 (1976).5. ENVIRONMENTAL AGENCY, GOVERNMENT OF JAPAN, QUALITY OF THE ENVIRONMENT IN JAPAN

247 (1987) [hereinafter ENVIRONMENTAL AGENCY].

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tion, (2) Nature Conservation, (3) Air Quality, and (4) Water Quality.6 The Planning andCoordination Bureau plans and implements basic policies covering environmentalprotection and coordinates various measures undertaken by other governmental agenciesto protect the environment.7 The Nature Conservation Bureau drafts and promotespolicies relating to the conservation of nature.8 The Air Quality Bureau establishesenvironmental quality standards and enforces various pollution control laws.9 Finally, theWater Quality Bureau promulgates water quality standards, enforces these standards, andregulates water pollution. 10 In practice, the authors have observed that the overallorganization of the Environment Agency of Japan is very similar to that of the EPA.

B. Environmental Pollution Control Policy in Japan

The Basic Law for Environmental Pollution Control (Basic Law) governsenvironmental policy in Japan." The Basic Law establishes fundamental nationalprinciples and policies, defines the scope of pollution control, assigns responsibility forcarrying out pollution control measures, and sets forth basic guidelines for regulations andadministrative procedures.' 2 On the whole, the Basic Law is a statement of policy whichprovides a framework for the Environmental Agency to follow in passing more specificlaws for the seven types of pollution which the Basic Law covers.'

The Basic Law defines environmental pollution to include any situation where humanhealth and the living environment are damaged by air pollution, water pollution, soilpollution, noise, vibration, land subsidence, or offensive odor. 4 The law also establishesgeneral principles concerning the financial responsibility of national and local governmentsas well as private enterprise.' 5 The Basic Law gives the national government theresponsibility for establishing fundamental and comprehensive policies for environmentalpollution control as part of its functions of protecting public health and conserving

6. Id. at 248-49.7. Id., at 250.8. Id. qt 251.

9. Id. at 252.10. ENVIRONMENTAL AGENCY, supra note 5, at 253.11. The Basic Law for Environmental Pollution Control, Law No. 132 (1967), as amended by Law

No. 132 (1970), Law No. 88 (1971), Law No. 111 (1973) and Law No. 84 (1974) [hereinafter Basic Law].INDUSTRIAL POLLUTION CONTROL AssociATIoN OF JAPAN, ENVIRONMENTAL PROTECTION IN THEINDUSTRIAL SECTOR IN JAPAN, A SURVEY OF ACHIEVEMENT 158 (1983) [hereinafter IPCAJ].

12. IPCAJ, supra note 11, at 158. The Basic Law remained unchanged during 1993 since there wasa no-confidence vote in mid-1993 for the existing government. Id. The Miyazawa Cabinet was defeated bya no-confidence vote and the Prime Minister dissolved the cabinet. Id. This prevented a new bill frombeing passed on June 18, 1993. Id. Therefore, for the balance of 1993, the existing "Pollution ControlMeasures Basic Laws" remain in effect. Id. In early 1993, the Director General of Japan EnvironmentalAgency commissioned the Central Council for Environment Pollution Control to consider the improvementof National Effluent Standards and also to study soil contamination standards. Id. The Central Council isexpected to submit its report by the end of 1993, and some changes in Japanese environmental law can beanticipated for 1994. Id.

13. See supra notes 6-12 and accompanying text.14. ENVIRONMENTAL AGENCY, supra note 5, at 2 (citing Basic Law, art. 2).15. Id. at 6 (citing Basic Law, arts. 22-24).

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national resources. 6 Local governmental bodies, 7 on the other hand, execute thesenational policies and develop measures to meet special local needs, taking into accountlocal, social, and physical conditions, although they may at times regulate pollution byadministering a more stringent local standard."

C. Federal Versus Prefectural and State Control

In Japan, local governments have the authority to take charge of the preservation andimprovement of the environment in their jurisdiction; they can establish ordinances with-out infringing upon the laws or order of the national government. Every prefecturalgovernment is free to establish stringent regulations for matters belonging to its autonomyand its residents' rights to life, and each local government has in fact enacted an ordi-nance for environmental pollution control. 9 More specifically, the trend toward decen-tralization of pollution control in Japan has accelerated to the point where seven prefec-tures have passed ordinances establishing a comprehensive approach to environmentalprotection, and every prefecture has passed some type of pollution control ordinance."

II. A COMPARISON OF U.S. AND JAPANESE

AIR AND WATER POLLUTION LAW

A. Japanese Air Pollution Control Law

The purpose of Japan's Air Pollution Control Law is to protect public health andpreserve the living environment from harm caused by air pollution. This goal is achievedthrough regulation of the emission of soot or particulate matter, smoke, dust, and motorvehicle exhaust.2' The law requires that emission standards be set for each type ofemission by the prescription of maximum permissible limits.2 These limits are calledEnvironmental Quality Standards (EQS).23 In areas designated by a cabinet order, whereattaining the applicable EQS will be difficult due to a high concentration of factories andindustrial establishments, the law requires the governor of the prefecture containing thearea to formulate a mass reduction plan for emissions, but allows standards below or atvariance with the national EQS. 24 The practical consequence of the Air PollutionControl Law is that all major industrial areas and cities will be covered by mass reductionplans for air emissions.

16. Id. at 2 (citing Basic Law, art. 4).17. Japan has 46 prefectures which are analogous to the 50 states in the U.S. 6 DOING BUSINESS IN

JAPAN § 10.01[4] (Zentarc Kitagawa ed., 1989) [hereinafter DOING BUSINEss]. Each prefectural governmenthas a division specializing in environmental pollution administration, an environmental pollution protectioncenter or an institute to research environmental pollution. Id.

18. ENVIRONMENTAL AGENCY, supra note 5, at 5 (citing Basic Law, art. 18).19. DOING BUsINESS, supra note 17, §§ 10.01[5], 10.03[2][i].20. MANICHI DAILY NEWS, Sept. 15, 1977, at 5.21. Air Pollution Control Law, Law No. 97, art. 1 (1968).22. Id. arts. 1, 2.23. Id.24. Id. arts. 5-2, 5-3; communication with Koutoko Igarashi, General Manager, Environmental &

Safety Department, Mitsubishi Materials Corp., in Tokyo, Japan (Aug. 15, 1990).

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Any person who plans to establish a facility which will emit soot and smoke ordischarge particulate matter must report the following information to the governor of theprefecture:

(1) His or her name, or the name of the firm, and the address;(2) name and location of the plant or business establishment;(3) kind of proposed emitting facility;(4) structure of the proposed emitting facility;(5) method of operation of the proposed emitting facility; and(6) proposed method of disposal of soot and smoke or particulates.

The governor of the prefecture has the power to issue all the permits to begin constructionand normally does so within a short period, approximately two months.' Thus, thecentral government has delegated the authority to issue permits to local governors.

Other enforcement regulations require that the following information be reportedwhen a party intends to construct a new emission-emitting facility:

(1) Method of discharge;(2) locations of discharge;(3) outline of the facility's operating systems;(4) discharge measuring points;(5) emergency communications methods; and(6) drawings of the facility and other documents.26

The information contained in these applications provides the government of the prefecturewith knowledge of the exact location of the discharge, the instrumentation used, and themethod of operation. This knowledge makes it easier to inspect and supervise the facility.

Once an emitting facility is operating, the governor of a prefecture may require theemitting facility to make specific reports to the governor. Further, the operator of theemitting facility may be required to allow inspection by representatives of the prefectureat any time without notice." However, because of the trust which usually exists betweenthe prefecture and the operation, an inspection without notice is rarely performed. If thegovernor finds that the emitting facility is failing to observe the established standards, thegovernor may either order the facility to conform to the standards within a specific timeor order a temporary suspension of the facility's operations. 28 In addition to the requiredinspection and reporting, the governor of the prefecture must establish a monitoringsystem to survey the level of air pollution.29

25. Air Pollution Control Law, arts. 1, 6, 18. Compare this time frame to the time required to obtaina permit in the U.S., which is anywhere from two to five years for federal and state permits.

26. Air Pollution Control Law, supra note 21, arts. 8, 10.27. Id. art. 26.28. Id. art. 18, para. 4.29. Id. art. 22.

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B. Japanese Water Pollution Control Law

Similar to its Air Pollution Control Law, Japan's Water Pollution Control Law isdesigned to prevent the pollution of water in public water areas. A public water area isdefined to include rivers, lakes, harbors, and coastal seas, along with the water lines30

connected to them. Under the Law, national effluent standards are set for substanceswhich affect human health and the living environment.3 ' A person who discharges efflu-ent from factories or other industrial establishments must meet a reporting requirementsimilar to those applicable under the Air Pollution Control Law.

The Water Pollution Control Law requires persons who operate an emitting facilityto report the following information to the prefecture in which the plant is located:

(1) Their names and addresses, and for corporations, the names of their representa-tives;

(2) name and address of the factory or establishment;(3) type of facility;(4) structure of the facility;(5) manner of use of the facility; and(6) method of treatment of polluted water or waste liquid to be discharged from the

facility.32

Additionally, persons may have to report to the Prime Minister's office33 other itemsprovided for in an ordinance, such as the pollution level and the quantity of effluent tobe discharged.'

By way of local control, the Water Pollution Control Law grants the governor of aprefecture the power lo establish more stringent standards for preserving human health andthe living environment if the national effluent standards are judged to be insufficient.35

The Water Pollution Control Law also has a report and inspection article that requiresemitting facilities to make specific reports and allow inspections upon the request of thelocal prefectural governor.36 Further, the law gives the prefectural governor the powerto order improvements to an emitting facility to reduce the level of any effluent. If afacility fails to meet an effluent standard, the governor may order either that the facilitybe temporarily shut clown or that the discharge of effluent be stopped.37 Finally, bothlocal and national government agencies have monitoring programs to survey water

30. The water lines are the actual pipes and ditches that transport the liquid effluent into the publicbody of water.

31. Water Pollution Control Law, Law No. 138, art. 3 (1970); Air Pollution Control Law, supra note21, ch. II, art. 3.

32. Water Pollution Control Law, supra note 31, art. 5.33. Id.34. Id. art. 3, para. 3.35. lId36. Id. art. 22.37. Id. art. 13.

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quality.38 Periodic government inspections, including sampling and assaying of the efflu-ent, ensure that the facility is free of pollution.

C. Overview of the Japanese Permit Procedure for a New Emitting Facility

The Japanese national laws allow each prefecture to regulate the granting of newpermits for the construction of new plants as well as the modification of existing emittingfacilities.39 An applicant must notify the Environmental Bureau of the proposedpollution-emitting facility and supply the Bureau with information about the productswhich the facility will produce.4 The laws may also require the submission ofadditional information in the report.4 The Environmental Bureau reviews the reportswithout the requirement of an assessment; the Bureau normally grants the applicationwithout delay and without any environmental impact statement or detailed studies.42

Simultaneously, the applicant submits a permit application for the new facility to theIndustries Bureau, which makes inspections at the plant site. An applicant applies to theConstruction Bureau for building and development permits. Once the applicant obtainsboth permits and the Industries Bureau's approval, the applicant then can beginconstruction on the emitting facility.

D. Comparison of U.S. and Japanese Air and Water Pollution Control Laws

Japanese air and water pollution control laws tend to be supervised on a regionallevel. Although Japanese law mandates national EQS, it allows local prefectures toestablish more stringent effluent and ambient air discharge standards in areas where thenational standards are unlikely to attain the applicable EQS. Thus, most pollutionstandards in industrial areas will be controlled by the local prefecturals.

The Japanese permit procedure for new facilities, whether built by Japanese firms,joint ventures, or foreign firms, appears to require minimal effort. The operator of a newfacility must submit to the local prefecture a report describing the facility. The reportprimarily informs and notifies the prefecture of the facility's existence and of the productsthat it will produce; however, the prefecture performs no assessment at the time of thereport because it assumes that the facility will operate in compliance with the standardsof the local prefecture. In Japan, after the facility is built and in operation, more regularmonitoring of the facility's operations occurs, more reports from the emitting facility mustbe submitted, and more site inspections of the facility are performed by the localgovernment than in the United States.43

38. Id. arts. 15-16.39. See infra Appendix A (discussing the procedure required for a Japanese facility to secure permits

for construction and operation).40. See supra notes 25, 32 and accompanying text.41. See supra notes 26, 35-36 and accompanying text.42. This swift action by the Environmental Bureau is in marked contrast to the environmental impact

statements required for most major U.S. projects. See 40 C.F.R. §§ 1502.3, 1508.18(a) (1992).43. DOING BUSINESS, supra note 17, §§ 10.02 [l[b], [2][b]. Mitsubishi Materials Corp. (MMC)

obtained all the environmental permits necessary to build a new copper smelter at Naoshima, Japan, in 42days during November and December of 1989. The applications included the monitoring, reporting, and

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Another very important distinction between Japanese and American pollution law canbe found in the respective relationships between government and industry. In Japan, gov-eminent and industry jointly promote industrial development.' The federal and localgovernments try to be: more helpful than coercive in their approach to regulation, and theytend to be flexible in working with industry.45 In return, industry collaborates with gov-ernment more often than it opposes governmental environmental regulations.46 Further,various government ministries, such as the Ministry of Finance and the MITI, normallyretire their top bureaucrats between the ages of fifty to fifty-five years. These retireesthen provide a reservoir of potential board members and executives for large companies.In these executive positions, the former vice ministers maintain close relations with theirformer ministry subordinates, who were often their protrgds. Their subordinates oftenmove into the vacated government posts. The overall atmosphere between industry andthe government in Japan is therefore one of partnership.47 For a major project, acompany works with the government and environmental groups to ensure that publicopinion is favorable toward the project.48

This relationship is in contrast to the situation in the United States, where representa-tives of industry and government generally view each other as adversaries, rather thanpartners. Because of this relationship, industry will often oppose federal regulations andproceed with time-consuming and costly legal battles rather than moving forward withresearch and implementation of pollution technology.

A further difference between the two countries lies in the delegation of duties for thedevelopment and eniforcement of environmental laws. The Japanese EnvironmentalAgency drafts a master plan for the environmental protection policy. In preparation ofthe master plan, the Environmental Agency accepts opinions from the interested ministriesand prefectures. MITI promotes the development of industry as well as comments on themaster plan, with due regard to the actual condition of the nation and its pollution. How-ever, prefectural governments put rules into practice within their sphere of jurisdictioninstead of the central Environmental Agency. In practice, the prefectural government hasbeen delegated the responsibility of handling the permit procedure at a local level foremitting facilities. This system makes matters much easier for new industry than the U.S.system, which is mainly regulated at the federal level.

Finally, with regard to the stringency of regulations, Japanese and U.S. effluent andambient standards appear somewhat similar. However, the United States is slightly more

inspection plans. In the U.S., the same permits require several years to negotiate and finalize.44. The authors conclude this from personal observation of the growth of MMC industrial facilities in

Japan.45. Mayor of Naoshima, Japan, public statement on July 14, 1990 (supporting plant operations).46. The authors conclude this from their observations made during several visits to the island of

Naoshima, the site of a major industrial MMC facility which has operated for over 75 years in harmony with5000 resident neighbors in an area of less than 1500 acres. The authors have continually inspected thisfacility over a period of 25 years.

47. GREssER, supra note 1. at 279-83.48. One example is. the building of a new copper smelter in only 17 months, occurring after the

company had explained the basis for its decisions and obtained overwhelming public support.

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stringent on the effluent discharge standard,4 9 while Japan appears more stringent on theair quality standard.4 °

E. Comparison of U.S. and Japanese Timetables for Obtaining Permits

In Japan, it takes less time to obtain the permits necessary to begin the constructionof an emitting facility than in the United States. Instead of emphasizing the constructionand operation permit stage, Japanese law requires the Environmental Bureau to spend agreat deal of time and effort on monitoring, sampling, and inspecting sites after thefacility is built.

U.S. law tends to focus primarily on the actual permit stage. The permit scheme ofenvironmental statutes and regulations requires industry to use specified technology andshow evidence to support an assessment that a permit should be granted. To obtain a per-mit to operate a major industrial facility in the United States, an applicant must prepareat the start of a project an Environmental Impact Statement (EIS), which requires one toone-and-one-half years to complete.5'

The State of Texas provides a typical example of U.S. procedures. Considerable timeand effort is spent by the EPA Region 6, the Texas Air Control Board, the Texas WaterCommission, and the U.S. Army Corps of Engineers during the permit process itself, butnot during the subsequent inspection of operating facilities.5 2 The EPA seems to be lessconcerned with enforcing emission standards on existing facilities that might be inviolation of the standards; rather, the EPA focuses much of its attention on new sourcefacilities that are trying to acquire permits. The EPA's approach seems to be one ofencouraging initial compliance with emissions standards rather than seeking out pollutersand discouraging future violations.53

Pollution control is performed on a much more regional level in Japan than in theUnited States. In the heavily industrialized areas of Japan, the prefectures control theeffluent discharges, current discharge standards, and the ambient air quality standards.In the United States, local county health districts are generally too understaffed, due tolimited budgets, to enforce pollution control standards; therefore, the smallest level ofactual regional control lies with the state.

There has been a history of cooperation between government and industry in Japan.When issuing a new plant facilities permit, the Japanese government is willing to acquireand accept limited information from a new source, take at face value the information itreceives from the Japanese company, and not require any detailed environmental studiesor assessments. More attention seems to be focused on regular monitoring, reporting, andinspecting of the new plants. Also, both the air and water laws allow the government to

49. See infra Appendix B (comparing effluent discharge standards).50. See infra Appendix C (comparing air quality standards).51. See infra part IV (discussing the legal requirements for environmental analysis under U.S. federal

law).52. Dr. Mackey served as the president of Texas Copper Corporation from 1989 through 1993. During

this period, the corporation invested over $4 million and over four years to obtain a finding of no significantimpact (FONSI) on its permit application.

53. The authors make this conclusion based on their involvement with the permit procedures of a majoremitting facility in the U.S.

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shut down a plant that is not meeting a required standard. In the United States, asdiscussed, the EPA ifocuses most of its attention on the pre-operation permit process.

m11. CASE STUDIES: A COMPARISON OFREGULATORY FRAMEWORKS AS APPLIED

Both Japan and the United States have enacted effluent discharge standards for typicalelements which a facility will be permitted to emit. An examination of the generalJapanese and U.S. standards (taken from a proposed plant in Texas)5, shows that theUnited States limits for monitored elements are much lower than those in Japan. Anexamination of the Japanese national emissions standards for sulfur oxides (SOx) willdemonstrate the decentralized manner in which the various levels of Japanese governmentclassify and regulate each region.55 Emission standards for SOx are set for a givenemitting facility by calculating and inserting a K value, specified by Cabinet Order,56 forthe region in which the facility is to be located, by means of the following equation:57

q=Kx l0-3 xHe2

Here, q is the hourly volume of sulfur oxide emitted in normal cubic meters and He is the"effective height" of the stack-the sum of actual height of the stack and the smokeascent height, in meters.58 The value of K, which varies according to the region,inversely determines the degree of regulation.59 In other words, a reduction in K meansstiffer control standards. The standard for SOx has hence been labeled the "K valueregulation."'

The general emission standard for SOx, the K value, was made more stringent onSeptember 28, 1976; '5t as a result, all of Japan is now controlled under sixteen K factorsranging from 3.00 to 17.5.62

In Japan, areas remote from population centers and heavy industry have a higher Kvalue, more polluted, heavily industrialized areas have a lower K value. For the areasaround Tokyo, the K value is very low at 1.17; other heavily populated areas also havea low K value ranging from 1.75 to 2.34.63 The United States has no similar frameworkof K factors to address the amounts of SOx which an industrial facility may emit.

At the state level, under the current Texas Air Control Board regulations, 4 newindustries are required to perform modeling, using emission data on file, for surrounding

54. See infra Appendix B (listing the actual figures).55. ENVIRONMENTAL AGENCY, supra note 5, at 275-76.56. Id57. l58. Id59. Id.60. ENVIRONMENTAL AGENCY, supra note 5, at 275-76.61. Id.62. See infra Appendix D (discussing general standards).63. See infra Appendix D (subsection b for new plants).64. TEX. HEALTH & SAFETY CODE ANN. §§ 381.001-381.023 (1993).

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industries near an applicant's new plant site. This modeling work is used to determinethe impact of the applicant's emissions on the environment.

In the late 1970s and early 1980s, Japan implemented a three-part approach to controlthe problem, which resulted in a lowering of the ambient level for SOx. This approachincluded (1) lowering the sulfur content of imported fuel, (2) desulfurizing heavy oil, and(3) desulfurizing stack gases.6

Japan's ability to achieve this improvement depended partly on the relatively simplenature of the problem of SOx produced from burning petroleum that contained sulfur,which in turn allowed for relatively simple technical solutions. Because Japan importspractically all its fuel oil, it was simple to decrease the oil's sulfur content by restrictingthe importation of high sulfur fuels. The government gave support and subsidies toencourage the importation of low sulfur fuel, the development of petroleum desulfurizationdevices, and the development of stack gas desulfurization equipment. As a result, Japantoday is significantly ahead of the United States in the development and use of SOxcontrol technology."

Applying this regulatory framework to the copper metal industry, the authorscompared the U.S. and Japanese environmental standards for air,67 water,68 and solidtoxic waste.6 The Japan portions of Appendixes E, F, and G list standards: column 1,the limits enacted by the Environmental Agency; column 2, the limits enacted by themining bureau of the MITI; and column 3, the limits by local agreement between a coppercompany and the prefectural governmental agency. The K values listed are similar to theK values described in the above equation for sulfur dioxide.70 In the U.S.-Texas column,Appendixes E, F, and G list the existing and the new source EPA guidelines foremissions.

Two copper smelters in El Paso, Texas, namely the ASARCO and Phelps Dodgeplants, serve as an example of what occurs in the United States. Both plants operateunder agreed court orders which allow exceptions to the current EPA regulations. In1992, the ASARCO plant was granted permits to retrofit its equipment to lower its SOxemissions (there is a copper refinery in Amarillo, Texas also known as the ASARCOplant). Texas already regulates existing copper plants. In the new source column andunder SOx, Appendixes E, F, and G list the limit for converters and other furnaces at 650parts per million. Special standards apply only to newly constructed facilities.

The maximum limits in Texas for most specific elements, such as cadmium, lead,arsenic, copper, and zinc, in plant effluents are lower than the limits in Japan. Becauseof the K factor regulations, most copper plants in Japan are allowed to discharge moresulphur dioxide than new facilities in Texas.

The examination of regulations summarized in Appendixes E, F, and G clearlydemonstrates that there is no uniform basis of comparison of emissions standards for

65. Dr. Mackey learned of this three-part approach from communications with corporate executives inJapan. Japan now has the technology and equipment to substantially lower the emission of SOx ascompared to emissions allowed by existing U.S. technology and equipment.

66. GRESSER, supra note 1, at 268-75.67. See iifra Appendix E.68. See infra Appendix F.69. See infra Appendix G.70. See supra notes 56-60 and accompanying text; ENVIRONMENTAL AGENCY, supra note 5, at 267.

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copper plants in the United States and Japan, and that Japan monitors more parametersthan does the United States. It appears that Japanese ambient air quality standards andsolid waste limits are stricter than those in the United States.

IV. A U.S. LEGAL STRENGTH: THE REQUIREMENT OF AN ENVIRONMENTAL

IMPACT STATEMENT FOR PROPOSED EMITTING FACILITIES

U.S. law required an EIS for major federal facilities long before Japanese law did.On January 1, 1970, the U.S. federal government passed the National EnvironmentalPolicy Act (NEPA)?' NEPA is an important piece of environmental legislation becauseit requires federal agencies to perform an environmental assessment to determine whethera major federal action will have adverse environmental effects. NEPA requires that anEIS be "included" in every recommendation or report on proposals for "legislation andother major federal actions significantly effecting the quality of the humanenvironment."

The first step in the preparation of an EIS is to determine whether "federal" actionis involved. A "major federal action" encompasses "actions which may be or which arepotentially subject t:o federal control and responsibility."73 In addition to federalinvolvement, there must also be a "proposal" for action such as programmatic actions,which are "major" and "significantly affect" the quality of the human environment.7 4

In general, courts reviewing the adequacy of an EIS simply examine the administra-tive record to ascertain whether it evidences a rational basis for the federal entity'sdecision to prepare an EIS for a particular project. If a federal agency issues a findingof no significant impact (FONSI) in lieu of requiring the preparation of an EIS, theFONSI should briefly describe the basis for the finding and state that an environmentalassessment is sufficient to avoid the lengthy EIS process. Most major U.S. firms nowconduct an EIS for large industrial plants in order to save time in obtaining all therequired permits.7'

V. A JAPANESE STRENGTH: COMPENSATION FOR HEALTH DAMAGE

In 1973, the Pollution Health Injury Compensation Act was passed in Japan toestablish an administrative structure to oversee compensation payments to people whosehealth was damaged by pollution. 76 Under the Act, victims of designated diseasesarising in officially identified pollution areas were examined by a special Health DamageCertification Council comprising of medical, legal, and other experts.77 Uponcertification, these victims were eligible for reimbursement of their medical expenses andlost earnings. Additional assistance provided victims' survivors with funeral and other

71. 42 U.S.C. §§ 4321-70(a) (1993).72. Id. § 4321 et seq. See GOVERNMENT INSTS.. INC., ENVIRONMENTAL LAW HANDBOOK 416, 444

(1987).73. 40 C.F.R. § 15.08.18(a) (1992).74. 1d75. Id.76. Pollution Health Injury Compensation Act, Law No. 111 (1973).77. Id

1993 / Comparison- of U.S. and Japanese Environmental Laws

expenses. The polluters were required to pay the entire cost of victim assistance. TheAct also provided an apparatus for review of grievances under which victims couldpetition the prefectural governor or mayor for disposition of compensation benefits,certification, and other actions.

Four major pollution injury suits, which were tried between June 1971 and March1973, significantly influenced Japanese environmental law." These cases developed the

oncept of the foreseeable effects of a person's combined acts which imposedresponsibility on the person for a resulting disease harmful to the general population.These cases are especially important because the typical Japanese citizen prefers to avoidconfrontation over injury due to adverse environmental impact. There is a reluctance tomake such injury public, and generally, a victim's initial response is to conceal theexistence of deformity or abnormality caused by pollution. Victims are reluctant to dis-cover the cause and usually feel no anger toward those responsible for the injury. Suchan attitude also gives rise to a reluctance to assert legal or moral rights; in many instances,the victims were more likely to accept their fate as somehow deserved rather than toblame others.79

Under the concept of foreseeability which developed from these cases, a Japanesecompany is held responsible for its acts which adversely affect human health. If it selectsa site for a facility near human settlements, the company is on notice of the clearpossibility of harm, and it must employ the best technology available to control itspollution. However, the cases hold that the use of such technology will not shield thecompanies from liability if other protective measures could have been employed. Thecases further hold that emissions regulations are merely guidelines which cannot be usedto bar liability and that no prescriptive right to pollute exists. Even compliance withexisting regulations is insufficient as a defense when injury has occurred to the humanpopulation. 0

In contrast, the seriousness of health damage from pollution has received littlescholarly, professional, or legislative attention in the United States. Further, statutory andcase law has not developed an effective approach to compensate human victims ofpollution.

VI. CONCLUSION

Japan has enacted strict environmental laws and has enforced controls which havesubstantially decreased perceivable urban air and water pollution. Japan has achievedimpressive results in eliminating pollution linked to serious human health problems. Sub-stantial reductions of airborne SOx and other sulfates have been made, along with reduc-tions of certain waterborne toxic substances, such as mercury and cadmium. Marked

78. See Judgment of June 30, 1971, Toyama Dist. Ct., 17 Hanji 635, affd, Judgment of Aug. 9,1972, Nagoya High CL, 25 Hanji 674; Judgment of Sept. 29, 1971, Nigata Dist. Ct., 96 Hanji 642; Judgmentof Mar. 20, 1973, Kumamoto Dist. Ct., 15 Hanji 696; Judgment of July 24, 1973, Tsu Dist. Ct., 30 Hanji672.

79. Frank Upham, Litigation and Moral Consciousness in Japan: An Interpretive Analysis of FourJapanese Pollution Suits, 10 L. & SocimEy 579 (1976).

80. Julian Gresser, The 1983 Japanese Law for the Compensation of Pollution Related HealthDamage: An Introduction Assessment, 8 L. IN JAPAN 91, 91-92 (1975).

The Transnational Lawyer/ VoL 6

improvements have been made in the control of the flow of toxic substances into riversand streams.

These are major achievements for which Japan deserves great credit, especially sincethis progress was accomplished in the face of continuing rapid industrial and economicgrowth.8 Indeed, there was an environmental disruption in the postwar period causedby the new structure of the steel, oil, refining, petrochemical, paper pulp, power, andautomobile industries. These pollution-prone industries spread across the nation inresponse to regional development schemes promoted by the government under variouslegislative umbrellas. Nevertheless, the Japanese experience is discouraging because thenation's sense of crisis diminished once the most easily perceivable air and waterpollution problems were mitigated.82

The basic structures of Japanese and U.S. environmental laws, such as ambientquality standards and emissions limitations, are similar. However, there are fundamentaldifferences between the Japanese and the U.S. methods of formulating and enforcingenvironmental policy. Additionally, Japanese environmental law differs strikingly on itsfocus in providing compensation for health-injury cases related to pollution, as epitomizedby their compensation law. Their procedures prevent environmental harm prospectivelyand provide administrative remedies.8 3

The differences in the Japanese and U.S. environmental laws and national policies canbe traced in part to the cultural differences between their respective populations. U.S. andJapanese environmental laws have followed similar paths of change over the last twenty-five years. However, Japan issues permits in a relatively short period of time-monthsinstead of years-for new facilities by avoiding confrontation between the parties at thestart. Japan then monitors the operation in a more detailed fashion as compared to theU.S. agencies. Even if the practitioner disagrees with the Japanese emphasis oncooperation between government and industry, and on the supervision of operatingfacilities, the practitioner advising the client who wishes to build a facility in Japan mustgrasp these aspects of Japanese environmental law.

81. The controls may even have had a net positive economic effect by creating new jobs and newindustries that design and manufacture pollution control technology; such technology is now furnished toforeign markets in addition to the large domestic market.

82. RHOADS MU1:PHEY & ELLEN MURPHEY, THE JAPANESE EXPERIENCE WITH POLLUTION AND

CONTROLS 292-93 (1983). In the case of nitrogen oxides, there was an increase in the national ambientlevels during the 1970s and early 1980s. Id. Water pollution may yet be a serious problem for Japan'sclosed water bodies, such as lakes and marshes. MICHAEL R. REICH, ENVIRONMENTAL POLICY AND JAPA-NESE SocIETY: PART I--SUCCESSES AND FAILURES 194-95 (1983).

83. Bruce Aronson, Environmental Law in Japan, 7 HARV. ENVTL. L. REV. 135 (1983) (bookreview).

'1993 / Comparison of U.S. and Japanese Environmental Laws

APPENDIX A

JAPAN NATIONAL LAWS

PREFECTURAL REGULATIONS

Mainlyinformation andnotifications of

facilities orproducts (noassessment is

required)

After Operations, regular monitoringreports and site inspections are

conducted byENVIRONMENTAL BUREAU

The Transnatonal Lawyer / Vol. 6

APPENDIX B

EFFLUENT DISCHARGE STANDARDS(Milligrams per Liter)

Japan USA Texas

Element National Local Mine & N.S.P.S. (LocalLaw Govt. Smelter Plant)

Zinc 5 5 5 0.05 0.05

Copper 3 1 1 0.07 <0.01

Lead 1 0.5 0.3 0.02 <0.01

Arsenic 0.5 0.3 0.3 0.07 0.03

Cadmium 0.1 0.05 0.03 0.01 <0.01

1993 / Comparison of U.S. and Japanese Environmental Laws

APPENDIX C

AMBIENT AIR QUALITY STANDARD

Compound Japan USA

PPM PPM

SO 2 0.04 (24 hours) 0.14 (24 hours)0.1 (1 hour) 0.50 (3 hours)

NO2 0.04-0.06 (24 hours) ---- 0.05 (Annual)

CO 10 (24 hours) --20 (1 hour) 35 (1 hour)

MGm 3

TSP 0.10 (24 hours) --0.20 --

The Transnational Lawyer / Vol. 6

APPENDIX D

(a) GENERAL STANDARDS

Area K Value

1 6 areas: Central Tokyo, Yokohama-Kawasaki, Nagoya,Yokkaichi, Osaka-Sakai, and Kobe-Amagasald 3.0

2 21. areas: Chiba, Fuji, Kyoto, Himeji, Mizushima,Kitakyushu, and others 3.5

3 1 area: Sapporo 4.0

4 4 areas: Hitachi, Kashima, and others 4.5

5 3 areas: Toyama-Takaoka, Kure, and Tokyo 5.0

6 9 areas: Annaka, Niigata, Okayama, Shimonoseki, andothers 6.0

7 3 areas: Tomakomai, Hachioji, and Kasaoka 6.42

8 6 areas: Sendai, Fukui, Hiroshima, and others 7.0

9 8 areas: Asahikawa, Utsunomiya, Mihara, Tokushima,and others 8.0

10 8 areas: Akdta, Kanazawa, Otsu, Fukuoka, Nagasaki, andothers 8.76

11 6 areas: Takasald, Urawa, Narita, Naha, and others 9.0

12 4 areas: Shizuoka, Sasebo, and others 10.0

13 15 areas: Hakodate, Gifu, Takamatsu, Minamata, andothers 11.5

14 6 areas: Mishima, Kurume, and others 13.0

15 20 areas: Aomori, Morioka, Yamagata, Nagano,Kagoshima, and others 14.5

16 Others 17.5

(b) SPECIAL STANDARDS

Area K Value

6 areas: Central Tokyo, Osaka-Sakai, Yokohama-Kawasaki,Kobe-Amagasaki, Yokkaichi, and Nagoya 1.17

8 areas: Chiba, Fuji, Himeji, Mizushima, Kitakyushu, andothers 1.75

14 areas: Kashima, Toyama, Kyoto, Fukuyama, Ohmuta,Ohita, and others 2.34

1993 / Comparison of U.S. and Japanese Environmental Laws

APPENDIX E

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The Transnational Lawyer / Vol. 6

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APPENDIX G

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